From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):
The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.
Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.
[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?
The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.
***
This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.
Who needs technical law when you can do atmospheric law?
On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."
An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:
Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.
When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....
Well, you'll feel better if you dance like Fred Astaire:
Here's Fred with the words to the Gershwins' "They All Laughed."
They all laughed at Rockefeller Center Now they're fighting to get in They all laughed at Whitney and his cotton gin They all laughed Fulton and his steamboat Hershey and his chocolate bar Ford and his Lizzie Kept the laughers busy That's how people are They laughed at me wanting you Said it would be, "Hello, Goodbye." But oh, you came through Now they're eating humble pie
But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power. Chief Justice John Marshall laid down the broad interpretation:
This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.
This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.
I'm seeing a hair theme. The Lohan photo is obviously hair-centric. She's young and beautiful... and deeply troubled and going to jail. The 2 older characters pictured in juxtaposition with her are possibly troubled, but not deeply, and they're not going to jail. They do not find themselves under the thumb of government power. They are the thumb. (Lindsay! Look out for that thumb!) But they are hair-challenged. Surely, they'd trade it all for fabulous hair. Biden has his long, sad history of hair transplants. And Hillary's hair has been a big topic as long as we've known her. And it looks particularly awful in that picture. That photograph seems to say: This is why older women are required to cut their hair short. She's raising a glass of white wine... as if she doesn't even care anymore. She's laughing. Biden is yelling. Lohan is swooning. Now, I'm seeing much more than a message about hair. It's about how the oldsters are crushing the young in America today.
Anyway, what's unrealistic? In 2025, he won't be President. So it's totally realistic of him to blab about crap he won't have to do. And I'm quite happy to have him dreaming about the distant future instead of inflicting things on us right now.
The moon is 240,000 miles away. A trip to an asteroid would be 5 million miles — at a minimum.
Why go?
Why not!
Asteroids have always been passed over as a destination for human explorers. Then-president George H.W. Bush wanted NASA to go to Mars, while his son, George W. Bush, chose the moon. During the past six years, NASA spent $9 billion building a spaceship, rocket and other gear to help reach the second Bush's goal of returning humans to the lunar surface by 2020.
In February, Obama took steps toward killing Bush's moon program, which was beset by technical troubles and money woes. Two months later, in a speech at Cape Canaveral, Obama announced that the astronauts' next stop is an asteroid.
A President's got to be about going somewhere... somewhere else.
So far, the Obama administration has been quiet on the need for a major sum of money to accomplish his goal.
Ha.
What do you do once you get to an asteroid?
•Humans can't walk or drive on an asteroid.
... [E]ven the biggest asteroids have practically no gravity. So anything in contact with the surface could easily drift away.
Like thoughts in the cranium of a President.
"You don't land on an asteroid," says former Apollo astronaut Rusty Schweickart, a longtime advocate of asteroid studies. "You pull up to one and dock with it. ... And getting away from it, all you have to do is sneeze and you're gone." He envisions a spaceship hovering next to the asteroid and occasionally firing its thrusters to stay in place.
Astronauts wouldn't walk on an asteroid. They would drift next to it, moving themselves along with their gloved hands.
La la la. Float along!
In gloves!
To keep from floating into space, crewmembers could anchor a network of safety ropes to the asteroid's surface, but "that has its own risks, because we don't understand how strong the surfaces of asteroids are and whether (they) would hold an astronaut in place," says Daniel Scheeres, a planetary scientist at the University of Colorado.
Lasso an asteroid!
The minimal gravity also means that any dust the astronauts stir up will hang in a suspended cloud for a long time. Because there's no weather on an asteroid, there's no erosion to smooth the dust particles.
"It's all going to stay pretty razor-sharp. ... It's not the most friendly stuff in the universe," Korsmeyer says. Keeping humans safe as they explore an asteroid "is going to be really tricky."
Dodge razor-sharp dust!
Go 5 million miles to paddle your gloved hands across the surface of a rock and stir up a cloud of razor-sharp dust particles that will — once you leave — hang there endlessly.
Just so, you might say to them: "The proof that the little prince existed is that he was charming, that he laughed, and that he was looking for a sheep. If anybody wants a sheep, that is a proof that he exists." And what good would it do to tell them that? They would shrug their shoulders, and treat you like a child. But if you said to them: "The planet he came from is Asteroid B-612," then they would be convinced, and leave you in peace from their questions.
OMG! He's not a natural born citizen! But he was charming, he laughed, and he found quite a lot of sheep.
There was someone in the back of the theater with a loud and infectious laugh, who didn't laugh at any of the obviously funny lines, but instead laughed — maybe a hundred times — at a selection of lines that is not easy to characterize....
The laugher's interventions mostly seemed to me to be points where a character changed the subject, or said something that was unexpected in the context of the previous discourse, or said or did something awkward or socially uneasy....
But there were other theories. One person thought that the laugher might have been a friend of a couple of the actors, who reacted whenever one of them entered the on-stage conversation. Another theory was that the laugher was reacting when the actors made certain expressive faces. These are obviously overlapping theories, and many others might be devised as well.
In the comments, Richard Bell said:
Is it possible this laugher was the one person who best understood and reacted to Chekhov's special comic gift? What you have suggested is, in fact, a pretty good description of Chekhovian comedy. His characters don't really listen to each other. Someone once said there is no dialogue in Chekhov; only interrupted monologues. They change the subject because they don't know what the subject is; they have not been listening.
Now, Liberman says the laugh leader was "loud" and goes on to describe the actors seemingly reacting negatively to the laughing. So, it seems as though the laughing was bad in some special way that makes Bell's comment an incomplete response.
But I am very interested in laugh leading. When I go to the movies or a play, I find that I myself am a laugh leader. It don't laugh loudly, but I am the first person to laugh at a lot of things, and I get other people laughing. I'm not trying to go first. It's just that a lot of Americans — especially at high-art type movies and plays — are too polite or insecure about laughing. They'll sit there silently while all sorts of subtly funny things are happening as if they need to laugh lines and broad comedy to give them confidence. People seem to be unsure of their own perceptions or just numbed to nonobvious comedy.
A good laugh leader can lubricate the audience and intensify the pleasure of witnessing a performance with others. Of course, a bad laugh leader is a problem, especially if there are live actors on stage. But it's that fear of laughing first and laughing wrongly that holds so many people back and puts a premium on good laugh leading.
By the way, I did laugh — more than once — during our recent and oh-so-private wedding, but I won't tell you the things that made me laugh (other than sheer happiness).
